Decisions – COA – July 28, 2015

Debra Thames v. Christopher Thames, Sr. –  joint custody between parents living in different states –   Christopher and Debra  were married in May of  2008, and had a daughter, Sofia, born in January 2012.  In  January  2013, they separated and Debra moved to San Antonio, Texas. Christopher remained in Brandon, Mississippi.  In the final order, the Court  granted the parties joint physical and legal custody of Sofia with  the parties  alternating custody of the child on a monthly basis between  San Antonio and  Brandon.  The “parties will alternate this visitation schedule until further Order of the Court. This schedule will remain in effect until such time as either the State of Mississippi or the State of Texas, whichever is earlier, requires mandatory attendance in five (5) year old kindergarten when the child turns five (5) before the month of September.”  Debra appealed and the COA reverses and remands because the arrangement is impractical.

The distance between San Antonio and Brandon renders this custody arrangement impractical. In McRee, we agreed with the chancellor that an alternating monthly custody arrangement that shifted the child between Houston, Texas, and Jackson, Mississippi was impractical. See Massey, 799 So. 2d at 906 (¶13). The distance between San Antonio and Brandon is even greater. We, therefore, reverse the chancellor’s judgment and remand this case for a reconsideration of the Albright factors and a determination of who 7 is to have primary custody of Sofia.

Aaron Thomas v. Arnold Cook, The Hardison Law Firm et al. – conflict of interest sol –  In 2006, attorney Arnold Cook successfully represented Thomas before the Tennessee Board of Law Examiners after the Board ordered him to show cause why his psychiatric condition should not disqualify him from practicing law.  Six months later, Thomas sued a psychiatrist who had given an opinion he did not care for.   Cook represented the doctor.   “Thomas immediately informed Cook that he did not have Thomas’s permission to represent Thomas’s adversaries in a substantially related legal matter.  But Thomas never moved the circuit court to have Cook disqualified—even though he later claimed Cook’s animosity toward him caused him ‘substantial mental anguish and distress.’”  Almost three years later, Thomas moved to disqualify Cook but the court held that Thomas had waived his right to do so.  Thomas decided to dismiss his lawsuit in March 2011.  In February 2013, he filed another lawsuit against the doctor and Cook.   Thomas’s three years to sue began in April 2008, when he was notified Cook had been admitted pro hac vice to represent the doctor in the Mississippi medical malpractice case.  The COA affirms rejecting Thomas’ claim that this was a continuous tort or one to which the discovery rule would apply to toll the sol.

Franciene Smith v. Compfirst/LC Industries –  reopening workers comp case –  Smith was injured on the job in  2001.  The AJ  found Smith had suffered a total loss of use of her upper-right extremity entitling her to permanent partial disability. She also ordered the carrier to pay for all medical services and supplies connected to the injury. Smith received her final disability payment on June 29, 2004. In May 2013, Smith filed a “motion to reopen” her compensation case on the grounds she required significant medical treatment and she  unable to perform sustained gainful employment since the Commission’s prior order.  The AJ granted her request. The Commission reversed finding that her claim was barred by res judicata, and because M.C.A. sect 71-3-53 had never been “triggered,” the statutory exception did not apply.   On appeal, the COA reverses finding that the Commission erroneously interpreted 71-3-53.

 When the Commission makes an award, as it did in this case, the statute confers jurisdiction to review that award at any time until one year after the final payment of compensation. For purposes of section 71-3-53, “compensation” includes medical services. Broadway v. Int’l Paper, Inc., 982 So. 2d 1010, 1012 (¶8) (Miss. Ct. App. 2008); see also John R. Bradley&Linda A. Thompson, Miss. Practice Series: Miss. Workers’ Compensation § 7:21 (2014). Though almost a decade passed after Smith received her final disability payment, the fact she continued to receive ongoing medical services means the authority granted in section 71-3-53 has not run out.

Harold Mosley v. Triangle Townhousesnon-realtor not entitled to commission –  Mosley sued Triangle Townhouses for specific performance of an alleged promise to pay Mosley “a fair and equitable finder’s fee if he found a buyer” for Triangle Townhouses’ apartment complex.   Mosley claimed to have found a buyer which purchased the property for  $6,000,000 but  Triangle Townhouses never paid him the promised “finder’s fee.”  The chancellor dismissed the case on the grounds that  “no equitable doctrine or quasi-contract theory could prevail over the clear public policy that anyone performing real-estate-broker services, even just one time, must be duly licensed.”  The COA affirms.

Marc Lewis v. Stateevidence of mental illness not admissible where defense is accident –  Lewis was convicted of murder and sentenced to life after shooting him mother in the abdomen in the early hours of April 15, 2011. Lewis testified the gun went off accidentally.  Prior to trial, the State moved to limit the defense from mentioning Lewis’ mental illness because Lewis was defending the case on the grounds that  this was  culpable-negligence manslaughter and was not pursuing a diminished capacity defense. The court granted the motion. On appeal, Lewis argued that the state opened the door to such testimony because one of the state’s witnesses testified that Lewis was “out of it” after the shooting. “The trial judge found that the State had not opened the door because the witness’s statement was not in response to a question.”  The COA agrees. Lewis next argues that the court refused to allow him to make a record for review when it refused to make part of the record  a letter from Lewis’ family and church members asking for leniency.

 In this case, the trial judge did not say that Lewis was not allowed to place the letter from his family into the record; he simply said that the letter “would be more appropriate during an entry of a plea of guilty, a sentencing[,] or a restitution proceeding” in accordance with the statute. Lewis did not attempt to introduce the letter at the sentencing hearing; therefore, this issue is without merit.

Finally, the COA rejects Lewis’ argument that the weight of the evidence supported a manslaughter and not a murder conviction.

Pro se pcr dismissals affirmed

William Antonio Avery v. State

Bobby Sanders v. State

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